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All about Procedure of Arrest under

Criminal Procedure Code
By: Komal Srivastava

INTRODUCTION
Code of Criminal Procedure, 1973 lays down the procedural aspects of
procedure of arrest. Under this, the complete process been mentioned related to
arrest a person who committed any offence. The essential object of criminal law
to protect the society from criminal and from law-breakers. Therefore, criminal
law consists both substantive and procedural law. Chapter V of Code of
Criminal Procedure, 1973 deals with the arrest of persons under (Sections 41 to
Section 60).
Three People can issue the process of arrest, they are as follows:
 A police officer with or without warrant, or
 A private person, or
 A magistrate
Q.1 – What do we mean by the term arrest? Is it been defined under
CrPC?
Ans- This term “Arrest” is very common term that we pick up a lot in our day
today life. Normally, we see a person, who do or have done something against
the law, get arrested. The term ‘arrest’ means apprehension of a person by
legal authority so as to cause deprivation of liberty.
As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible
restraint; an exercise of the power to deprive a person of his or her liberty; the
taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge.”
In criminal law, arrest is a important tool for bringing an accused before the
court and to prevent him from absconding. Thus, after arrest, a person’s liberty
is under the control of arrester. Every deprivation of liberty or physical restraint
is not arrest. Only the deprivation of liberty by legal authority or at least by
apparent legal authority, in a professionally competent and adept manner
amounts to arrest. However, a person against whom no accusation of crime has
been made may be arrested /detained under a statute for certain purposes like
removal in safe custody from one place to another, for example – removal of a
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minor girl from a brothel. One thing to be noted that ‘custody’ and ‘arrest’ don’t
have same meaning. Taking of a person into judicial custody is followed after
the arrest of the person by Magistrate on appearance or surrender. In every
arrest there is custody but not vice versa. Thus, mere taking into custody of a
person an authority empowered to arrest may not necessarily amount to arrest.
PURPOSE: The mere purpose of arrest is to bring a arrestee before a court and
to secure the administration of the law. An arrest also serve the function of
notifying society that an individual has been committed a crime and to deter
him from committed any other crime in future.
Arrest can be made in both criminal and civil both but in civil matters the arrest
is the drastic measure which is not looked upon in favour by the court.
Q.2 – Who are authorized to arrest a person?
Ans- Arrest can be made by a police officer, magistrate or any private person,
like you and me can also arrest any person but the arrest should be made
according to the process mentioned under Crpc. A police officer is authorized to
arrest a person with warrant and without warrant. The code exempts the
members of Armed forces from being arrested for anything done by them in
discharge of their official duties except after obtaining the consent of the
government (Sec. 45). Any private individual may arrest a person only when the
person a proclaimed offender and the person commits a non-bailable offence
and cognizable offences in his presence (sec. 43). Any magistrate (whether
Executive or judicial) may arrest a person without a warrant (sec. 44)
Q.3- Is the police officer authorized to arrest any person without warrant?

Ans- Yes, the police officer is been authorized to arrest any person without the
warrant ordered by the court. Under Sections 41, 42, 151 CrPC, a Police
officer may arrest without warrant in the following conditions:

1. Who has been concerned in any cognizable offence such as murder, rape,
kidnapping, theft, etc. or
2. Who has in possession, without, lawful excuse, of any house breaking
weapon or
3. Who has been proclaimed as an offender either under CrPC or by order of
the State Govt. or
4. Who is in possession of any stolen property or
5. Who obstructs a police officer while in the execution of his duty or who
has escaped, or attempts to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the Armed
forces of the Union or
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7. Who has been concerned in any law relating to extradition or

8. Who, being a released convict commits a breach of any rule made under
sub-section (5) of Section 356 CrPC or
9. For whose arrest any requisition has been received from another police
officer specifying the person to be arrested and the offence and other
cause for which the arrest is to be made.

Q.4- What is the process of making an arrest? Is it mentioned under

CrPC?
Ans- The mode of arrest is been mentioned under section 46 with or without
warrant. In making an arrest the police officer /other person making the same
actually touches or confines the body of the person to be arrested unless there be
a submission to custody by words or action. When the police arrests a person in
execution of a warrant of arrest obtained from a magistrate, the person so
arrested shall not be handcuffed unless the police have obtained orders from the
Magistrate in this regard.
1. In making an arrest the police officer or other person making the same
shall actually touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or action.

Provided that where a woman is to be arrested, unless the circumstances

indicate to the contrary, her submission to custody on an oral intimation
of arrest shall be presumed and, unless the circumstances otherwise
require or unless the police officer is a female, the police officer shall not
touch the person of the woman for making her arrest.
2. If such person forcibly resists the endeavour to arrest him, or attempts to
evade the arrest, such police officer or other person may use all means
necessary to effect the arrest.
3. Nothing in this section gives a right to cause the death of a person who is
not accused of an offence punishable with death or with imprisonment for
life.
4. Save in exceptional circumstances, no women shall be arrested after
sunset and before sunrise, and where such exceptional circumstances
exist, the woman police officer shall, by making a written report, obtain
the prior permission of the Judicial Magistrate of the first class within
whose local jurisdiction the offence is committed or the arrest is to be
made.
Q.5- Can a police officer may arrest a person in any other place in India
outside their jurisdiction?
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Ans- As person section 48 i.e. pursuit of offenders into other jurisdiction lays
down that a police officer may, for the purpose of arresting without warrant any
person whom he is authorised to arrest, pursue such person into any place in
india.
Q.6- Is there any special provision given to females?

Ans- Yes, as regarding to females they had been given following special
protection as:-

 General rule is that Females are not be arrested without the presence of a
lady constable and further no female be arrested after sun-set but there are
exception in some cases, where crime is very serious and arrest is
important then arrest can be made with special orders and it depends on
facts and circumstances of each case. Separate lock ups to be provided for
them.
 The salutary principle that the medical examination of a female should be
made by female medical practitioner has been embodied in section 53(2).

Q.7- How a private person can arrest any other person?

Ans- Section 43 lays down the process of arrest by private person:
 Any private person may arrest or cause to be arrested any person who in
his presence commits a non-bailable and cognizable offence, or any
proclaimed offender, and, without unnecessary delay, shall make over or
cause to be made over any person so arrested to a police officer, or, in
the absence of a police officer, take such person or cause him 10 be
taken in custody to the nearest police station.
 If there is reason to believe that such person comes under the provisions
of section 41, a police officer shall re-arrest him.
 If there is reason to believe that he has committed a non-cognizable
offence and he refuses on the demand of a police officer to give his
name and residence, or gives a name or residence which such officer has
reason to believe to be false, he shall be dealt with under the provisions
of section 42; but if there is no sufficient reason to believe that he has
committed any offence, he shall be at once released.

Q.8-How a magistrate can arrest any other person?

Ans- Section 44 lays down the procedure of arrest by magistrate:
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 When any offence is committed in the presence of a Magistrate, whether

Executive or Judicial, within his local jurisdiction, he may himself arrest
or order any person to arrest the offender, and may thereupon, subject to
the provisions herein contained as to bail, commit the offender to
custody.
 Any Magistrate, whether Executive or Judicial, may at any time arrest or
direct the arrest, in his presence, within his local jurisdiction, of any
person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.

Q.9- What are the rights given to the arrested person?

Ans- Arrest of a person is made in order to ensure his presence at the trial in
connection with any offences to which he is directly or indirectly connected or
to prevent the commission of a criminal offence. In law, there is principle of
“presumption of innocence till he has proven guilty” it requires a person
arrested to be treated with humanity, Dignity and respectfully till his guilt is
proof. In a free society like ours, law is quite careful toward one’s “personal
liberty” and doesn’t permit the detention of any person without legal sanction.
Even article 21 of our constitution provides: “No person shall be deprived of his
life or personal liberty except according to procedure established by law”. The
procedure contemplated by this article must be ‘right, just and fair’ and not
arbitrary, fanciful or oppressive. The arrest should not only be legal but justified
also, Even the Constitution of India also recognize the rights of arrested person
under the ‘Fundamental Rights ‘and here I will inform you about those rights :-

IMPORTANT CASE:

D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to

eradicate the possibility of the committing torture by the police officials, there
were frequent instances of police atrocities and custodial deaths. Therefore, the
Supreme Court, in this case, issued some guidelines which were required to be
mandatorily followed in all cases of arrest or detention. Following are some of
the important ones-

 Right to be informed of the grounds of arrest under sec. 50 of crpc and

article 22 of Indian Constitution, it’s a fundamental right to be informed.
It is the duty of the police officer to inform you and also tell whether the
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offence is bailable or non bailable. Normally, Bailable offences are those

where bailable can be granted and it is right of the person to be granted
bail and Non- bailable offences are where bailable can’t be granted
generally and it’s the discretion of the court.
 In non- cognizable cases ,arrest are made with warrant and the person
going to be arrested have a right to see the warrant under Sec. 75 of crpc.
Warrant of arrest should fulfill certain requirements such as it should be
in writing , signed by the presiding officer , should have seal of court ,
Name and address of the accuse and offence under which arrest is made.
If any of these is missing, warrant is illegal.
 Under sec. 41 , police have a power to arrest a person without warrant as
prompt and immediate arrest is needed , no time to approach magistrate
and obtain a warrant for example in case where serious crime is has been
perpetrated by a dangerous person or where chances of that person
absconding unless immediately arrested. Section 41 got amended in
2008/2010 because of misuse of power conferred by this section to police
and amendments targeted the power conferred to police officer must be
exercised after reasonable care. Some clauses were put to this section
such as police officer must act reasonably that such arrest is necessary.
Not in all cases arrest in necessary, Notice of appearance before
police officer can be made if reasonable complaint has been made
,credible information has been received and suspicion exits of cognizable
offence and if concern person continues to comply with such notice and
appears then arrest is not necessary but he don’t, arrest can be made.( sec
41A)
 The police officer must be wearing a clear, visible and clear identification
of his name which facilitate easy identification. A memo of arrest must be
prepared at the time of arrest – (i) attested by least one witness, it can be
family member or member of locality where arrest is made (ii)counter
signed by arrested person.
 Right of arrested person to meet an advocate of his choice during
interrogation under sec. 41D and sec. 303 crpc.
 Arrested person have a right to inform a family member, relative or friend
his arrest U/ sec 50 of crpc.
 Arrested person have right not to be detained for more than 24hrs,
without being presented before magistrate, it is to prevent unlawful and
illegal arrests. This right is fundamental right under article 22 of Indian
constitution and supported under section 57 and 76 of crpc.
 Arrested person have right to be medically examined (Sec 54,55A) the
person who is arrested should be given the right to have his body
examined by the medical officer when is produced before a magistrate or
at any time under custody, with a view to enabling him to establish that
the offence with which he is charged was not committed by him or that he
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was subjected to the physical torture. With the insertion of 55A, “it shall
be duty of a person having custody of an accused to take reasonable care
of the health and safety of the accused” and it attempt to take care of
“custodial violence”( torture, rape, death in police custody/lock-up) to
some extent.
 Arrested person have right to remain silent under Sec. 20(3) of Indian
constitution so that police can’t extract self – incriminating statement
from a person without will or without his consent.

Q.10- Can the power of arrest be misused?

Ans- Although, there have been may safeguard provided by the code and
Constitution of India as mentioned above but the fact remain that the power of
arrest is being wrongly and illegally used in large no. of cases in all over the
country. The power is very often is utilized to extort monies and other valuable
property or the instance of the enemy of the person arrested. Even in civil
disputes, this power is being restored to a basis of a false allegation against the
party to a civil dispute at the instances of the opponent. The vast discretion
given by Crpc to arrest a person even in case of a bailable offence (not only
where the bailable offence is cognizable but also where it is non – cognizable)
and further power to make preventive arrest (e.g. under section 151 of the crpc
and several city police enactments), clothe the police with extraordinary power
which can be easily abused. Neither there is any in- house mechanism in the
police department to check such misuse or abuse nor does the complaint of such
abuse and misuse to higher police officers bear fruit except in some exceptional
cases.

RELEVANT CASES:
As, in cases of “ arrest” we have landmark judgments that have been given by
the Supreme court of India which sets some rule in favor of arrested persons and
also to prevent the misuse of powers.

Case 1:
JOGINDER KUMAR VS STATE OF U.P. [(1994) 4 SCC 260]

OBSERVATION- In this case Apex Court ruled that an arrested person

being held in custody is entitled , if he so requests, to have one friend ,
relative or other person interested in his welfare , told that he has been
arrested and where he is being detained. The police officer shall inform
the arrested person when is brought to the police station of this right. An
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entry shall be requested to be made in the diary as to who was informed

of the arrest. The Magistrate is obliged to satisfy himself that there
requirements have been complied with.

Case 2:
ARNESH KUMAR VS STATE OF BIHAR [(2014) 8 SCC 273]

OBSERVATION- ,In this case Apex Court ruled that an arrested person
being held in custody is entitled , if he so requests, to have one friend ,
relative or other person interested in his welfare , told that he has been
arrested and where he is being detained. The police officer shall inform
the arrested person when is brought to the police station of this right. An
entry shall be requested to be made in the diary as to who was informed
of the arrest. The Magistrate is obliged to satisfy himself that there
requirements have been complied with.

CONCLUSION
Up to now we tried to understand the term “Arrest”, procedure of arrest, rights
of the arrested person and related case laws to the topics. Above mentioned each
case has its own significance. By going through Law Commission paper on Law
of arrest, by we can read with data’s that how power of arrest is being misused
and more because of unawareness of people about their right. We somehow
console ourselves that these protectors of law and order must be doing right but
we have hundreds of cases where we witnessed of this power being misused.
These report shows high percentages of arrests are made even in bailable
offences, bails are not granted to those where getting bail is one’s right.
Increasing percentage of no. of under trial prisoners in jails, we can deal with
the plight of this topic separately. Arrest has a diminishing and demoralizing
effect on the personality. He is outraged, alienated and becomes hostile. But
there need to be balance between security of state on one hand and individual
freedom on other hand. There need to be some checks on this power and more
awareness need to be created among the peoples about their rights, so that
balance system can be form.